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New Orleans won't be released from NOPD consent decree, appeals court rules

U.S. Attorney General Eric Holder Consent Decree

CHRIS GRANGER/THE TIMES-PICAYUNE
U. S. Attorney General Eric Holder, left, is guided through the door by Mayor Mitch Landrieu, far left, as they announce the consent decree for the New Orleans Police Department during a press conference on Tuesday, July 24, 2012 at Gallier Hall.

A federal appeals court on Friday denied New Orleans Mayor Mitch Landrieu's request to undo a federally mandated consent decree to govern sweeping reforms in the New Orleans Police Department.

The U.S. 5th Circuit Court of Appeals rejected Landrieu's claims that circumstances had changed drastically since January, when the mayor's administration urged a federal judge to approve the decree.

Landrieu had argued that the decree should be scrapped because of two new developments: a separate consent decree for Orleans Parish Prison; and new revelations of venomous NOLA.com comments left by Sal Perricone, one of the U.S. Department of Justice's chief negotiators.

Landrieu in 2010 asked the Justice Department to conduct an investigation into allegations of constitutional violations, corruption and discriminatory policies in the NOPD. In turn, the Justice Department proposed a consent decree, to oversee reforms to the troubled institution.

At first, the Landrieu administration was outspoken in its support. U.S. District Judge Susie Morgan signed the consent decree on Jan. 11.

But the city in February served notice that it would ask the 5th Circuit Court of Appeals to review Morgan's decision to endorse the federal consent decree. The mayor's administration argued that the city could not afford to carry out the NOPD consent decree while there was a separate pact in place aimed at reforming conditions at Orleans Parish Prison.

In the appeal, the Landrieu administration argued that the city could not afford to support the NOPD consent decree because of its financial commitment to the OPP consent decree, which Orleans Parish Sheriff Marlin Gusman first estimated would cost the city roughly $22 million a year for at least two years, or about $45 million total.

Landrieu challenged that officers working paid details while on duty -- an area identified as warranting reform -- is not a constitutional violation, and thus should not be included in the consent decree's cost. Furthermore, the appeal said that recent revelations that Perricone -- the former New Orleans-based assistant U.S. attorney who was responsible for including the detail reform -- had authored inflammatory online comments about the consent decree had inherently tainted the decision, and "should provide relief from the judgment."

On Friday, a panel including Chief Judge Carl Stewart and Judges Jacques Wiener and Eugene Davis ruled that the city's arguments are not valid, and do not warrant release from the legal agreement.

The appellate judges dismissed the city's argument that "it had no knowledge of the potential cost ramifications" of the OPP lawsuit, recalling that an attorney for the city participated in OPP consent decree negotiations -- in which the $45 million figure was whittled down to $34.5 million -- one month before it urged the district court to approve the NOPD consent decree.

"The record clearly demonstrates that the city was fully informed of the likely cost of complying with the OPP consent decree well before it signed the NOPD consent decree and urged the district court to approve it," the ruling read. The judges also argued that there was no significant change in the city's financial ability to cover the cost of both consent decrees between approving the NOPD consent decree and attempting to withdraw from it.

The ruling also rebuffed the suggestion that the decision to enter into the NOPD consent decree was in any way influenced by Perricone's online rants, stating that "the city does not identify any way that it was prevented from 'fully and fairly presenting its case,'" and that "substantial independent evidence of problems related to the paid detail system was brought to the investigators by the public, NOPD officers, local judges and federal law enforcement officials during the investigation of the NOPD," and not Perricone.

The Landrieu administration may ask the appeals court for a rehearing.